Military nexus again under the Canadian microscope

On May 19, 2017, the Court Martial Appeal Court of Canada decided R v. Déry, 2017 CMAC 2. The decision, which can be found here (English) and here (French), disposes of 11 cases. The opinion of the court was written jointly by Justices Guy Cournoyer and Mary J.L. Gleason. Chief Justice B. Richard Bell concurred in the result. The majority, noting global trends, would have held that it violates s.11(f) of the Canadian Charter of Rights and Freedoms to subject a member of the armed forces to court-martial for offenses that lack a military nexus where the accused would have the right to a trial by jury in a civilian court. Despite this view, the majority determined that it was bound by an earlier contrary unanimous decision of a different panel of the Court Martial Appeal Court, R. v. Royes, 2016 CMAC 1, 486 N.R. 257. Chief Justice Bell agreed with the majority's conclusion but thought the earlier case was correctly decided. Déry tees up for possible review by the Supreme Court of Canada a basic issue that was not addressed in R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485.

S.11(f) provides:

11. Any person charged with an offence has the right . . . (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment . . . .

From the majority opinion:

[63] Consistent with the approach in Turpin, we believe the correct interpretation of “under military law” which provides the full measure of s. 11(f) is to read into paragraph 130(1)(a) of the NDA the military nexus requirement adopted by our Court. This approach has been consistently applied from MacDonald to R. v. Moriarity, 2014 CMAC 1, 455 N.R. 59 (Moriarity (CMAC)) and Larouche. Until the decision in Royes, the mere status of the accused as a member of the military was considered insufficient to deny a Canadian citizen his or her constitutional right to a jury trial with respect to a criminal offence committed in Canada. 

[64] The interpretation of “under military law” adopted by the Royes panel results in a much more restrictive protection of the constitutional right to a trial by a jury and narrows its scope. We believe this is inconsistent with the required broad and purposive way in which the guarantee of the right to a jury trial should be interpreted. No compelling case has been presented to justify this violation under s. 1: Moriarity (CMAC) at paras. 104-105; Larouche at paras. 19-20, 67-83, 131-132. 

D. The emerging international consensus to restrict the scope of military jurisdiction 

[65] An additional factor supporting our interpretation of s. 11(f) is the emerging international trend restricting the jurisdiction of military tribunals. . . .